Nyambe v People (SCZ Appeal 66 of 2005) [2005] ZMSC 49 (16 October 2005)

IN THE SUPREME COURT OF ZAMBIA SCZ APPEAL NO.66 of 2005 HOLDEN AT LUSAKA (Criminal Jurisdiction) BETWEEN: NALISHEBO NYAMBE APPELLANT VS. THE PEOPLE RESPONDENT Coram: Lewanika, DCJ, Chitengi and Mushabati, JJS. On the 16th day of October, 2005 For the Appellant: Mrs. M. K. Bwalya - Ag. Senior Legal Aid Counsel For the Respondent: Mrs. L. F. Siyunyi - Senior State Advocate JUDGMENT Mushabati, JS. delivered the Judgment of the Court. The appellant in this case was charged and convicted on his own plea of guilty of one count of unauthorized possession of military uniforms Contrary to Section 6 (1) (a) of State Security Act Cap.lll of the Laws of Zambia by the Subordinate Court of the first class for the Kaoma District presided over by a magistrate class I. Upon his conviction the appellant was committed to the High Court for sentencing. He was on 8th May, 2001 sentenced to 15 years imprisonment with hard labour with effect from 4th September, 2000. J 2 The appeal is based on one ground only that the proceedings in the courts below were a nullity for two reasons namely that they were commenced without the Director of Public Prosecutions’ consent i.e. fiat, authorizing the prosecution of the appellant and that the trial magistrate lacked jurisdiction because the offence with which the appellant was charged was triable by the High Court. The brief facts of the case were that the appellant was found in possession of some military uniforms namely Zambia National Service comprising of three pairs of long trousers, three shirts, one jersey, !4 pair of combat, one hat and one pair of hand-cuffs. He was arrested and taken before the Subordinate Court of the first class. The appellant pleaded guilty to the charge and was convicted accordingly. First and foremost Section 14 of the State Security Act, Cap.lll of the Laws of Zambia requires that any person charged with any offence under this Act shall only be prosecuted with the consent of the Director of Public Prosecutions. This Section reads:- Where any person is brought before a court on a charge under this Act no further proceedings in respect thereof shall be taken against him without the authority in writing of Director, save such as may be necessary by remand to secure the due appearance of the person charged. In this case, even before the Director of Public Prosecutions’ consent was obtained, the magistrate purportedly took the plea and convicted the appellant on his purported admission of the charge. Secondly the offence under Section 6 of the State Security Act, Cap.l 11 is triable by the High Court pursuant to The Offences To Be Tried By The High Court Order, 1973 made by the Chief Justice as contained in J 3 the Subsidiary Legislation to the Criminal Procedure Code, Cap. 88 of the Laws of Zambia. The Learned Counsel for the appellant submitted that both the magistrate and the High Court Judge acted without jurisdiction. The learned Senior State Advocate indicated to us that the State did not support the conviction and rightly so. Having considered the submissions and the law we are satisfied that the proceedings before the Subordinate Court were a complete nullity and so the subsequent committal of the appellant to the High Court was also a nullity. The case was therefore, not properly before the High Court and so the purported sentencing of the appellant was without jurisdiction. All in all the purported proceedings both before the Subordinate Court and the High Court were null and void “ab initio” for lack of jurisdiction. The appellant’s conviction and sentence cannot be allowed to stand. They are therefore, quashed. We order a retrial before a court of competent jurisdiction. D. M. Lewanika P. Chitengi DEPUTY CHIEF JUSTICE SUPREME COURT JUDGE C. S. Mushabati SUPREME COURT JUDGE